287.150. Subrogation to rights of employee or dependents against third person, effect of recovery--construction design professional, immunity from liability, when, exception--waiver of subrogation rig - Missouri Statutes

Subrogation to rights of employee or dependents against third person,effect of recovery--construction design professional, immunity fromliability, when, exception--waiver of subrogation rights on certaincontracts void, employer's lien on subrogation recovery, when.

287.150. 1. Where a third person is liable to the employee or to thedependents, for the injury or death, the employer shall be subrogated tothe right of the employee or to the dependents against such third person,and the recovery by such employer shall not be limited to the amountpayable as compensation to such employee or dependents, but such employermay recover any amount which such employee or his dependents would havebeen entitled to recover. Any recovery by the employer against such thirdperson shall be apportioned between the employer and employee or hisdependents using the provisions of subsections 2 and 3 of this section.

2. When a third person is liable for the death of an employee andcompensation is paid or payable under this chapter, and recovery is had bya dependent under this chapter either by judgment or settlement for thewrongful death of the employee, the employer shall have a subrogation lienon any recovery and shall receive or have credit for sums paid or payableunder this chapter to any of the dependents of the deceased employee to theextent of the settlement or recovery by such dependents for the wrongfuldeath. Recovery by the employer and credit for future installments shallbe computed using the provisions of subsection 3 of this section relatingto comparative fault of the employee.

3. Whenever recovery against the third person is effected by theemployee or his dependents, the employer shall pay from his share of therecovery a proportionate share of the expenses of the recovery, including areasonable attorney fee. After the expenses and attorney fee have beenpaid, the balance of the recovery shall be apportioned between the employerand the employee or his dependents in the same ratio that the amount duethe employer bears to the total amount recovered if there is no finding ofcomparative fault on the part of the employee, or the total damagesdetermined by the trier of fact if there is a finding of comparative faulton the part of the employee. Notwithstanding the foregoing provision, thebalance of the recovery may be divided between the employer and theemployee or his dependents as they may otherwise agree. Any part of therecovery found to be due to the employer, the employee or his dependentsshall be paid forthwith and any part of the recovery paid to the employeeor his dependents under this section shall be treated by them as an advancepayment by the employer on account of any future installments ofcompensation in the following manner:

(1) The total amount paid to the employee or his dependents shall betreated as an advance payment if there is no finding of comparative faulton the part of the employee; or

(2) A percentage of the amount paid to the employee or his dependentsequal to the percentage of fault assessed to the third person from whomrecovery is made shall be treated as an advance payment if there is afinding of comparative fault on the part of the employee.

4. In any case in which an injured employee has been paid benefitsfrom the second injury fund as provided in subsection 3 of section 287.141,and recovery is had against the third party liable to the employee for theinjury, the second injury fund shall be subrogated to the rights of theemployee against said third party to the extent of the payments made to himfrom such fund, subject to provisions of subsections 2 and 3 of thissection.

5. No construction design professional who is retained to performprofessional services on a construction project or any employee of aconstruction design professional who is assisting or representing theconstruction design professional in the performance of professionalservices on the site of the construction project shall be liable for anyinjury resulting from the employer's failure to comply with safetystandards on a construction project for which compensation is recoverableunder the workers' compensation law, unless responsibility for safetypractices is specifically assumed by contract. The immunity provided bythis subsection to any construction design professional shall not apply tothe negligent preparation of design plans or specifications.

6. Any provision in any contract or subcontract, where one party isan employer in the construction group of code classifications, whichpurports to waive subrogation rights provided under this section inanticipation of a future injury or death is hereby declared against publicpolicy and void. Each contract of insurance for workers' compensationshall require the insurer to diligently pursue all subrogation rights ofthe employer and shall require the employer to fully cooperate with theinsurer in pursuing such recoveries, except that the employer may enterinto compromise agreements with an insurer in lieu of the insurer pursuingsubrogation against another party. The amount of any subrogation recoveryby an insurer shall be credited against the amount of the actual paidlosses in the determination of such employer's experience modificationfactor within forty-five days of the collection of such amount.

(RSMo 1939 § 3699, A.L. 1955 p. 597, A.L. 1957 p. 560, A.L. 1990 S.B. 751, A.L. 1993 S.B. 251, A.L. 2005 S.B. 1 & 130)

Prior revision: 1929 § 3309

(1962) Employers and their workmen's compensation insurer could not recover, on theory of subrogation, amount of compensation paid injured employee from third party tort-feasor and his liability insurer who had settled with employee for amount in excess of compensation paid. O'Hanlon Reports, Inc. v. Needles (A.), 360 S.W.2d 382.

(1965) In an action to compel workmen's compensation carrier for plaintiff's employer to pay to plaintiff one-half of the trial expenses incurred by plaintiff in the trial of plaintiff's action instituted against a third party, held this section does not provide for the sharing of expenses in the event the third party action is unsuccessful and there is no basis in workmen's compensation act for plaintiff's action. Veninga v. Liberty Mutual Insurance Co. (A.), 388 S.W.2d 535.

(1965) Employer and workmen's compensation insurer had right to intervene under this section in employee's action for injuries suffered while acting within scope of employment, notwithstanding possible prejudice of injection of insurance into trial. State v. Luten (A.), 390 S.W.2d 931.

(1967) The second injury fund is subrogated to the rights of the employee and entitled to credit on the awards of a portion of the recovery by the employee from the third party. Cole v. Morris (Mo.), 409 S.W.2d 668.

(1967) The employer's right against the third party tort-feasor is wholly derivative, is conditional upon the existence of a cause of action in the injured employee against the tort-feasor, and as the employer has no separate cause of action for the subrogation claim, a judgment against the employee would defeat any claimed right of subrogation. State v. Holt (A.), 411 S.W.2d 249.

(1967) Where widow cooperated and testified in action brought by compensation carrier against third party, widow had not "effected" recovery within statutory provision. Maryland Casualty Co. v. General Electric Co. (Mo.), 418 S.W.2d 115.

(1968) The workmen's compensation law is not supplemental of the common law, but is wholly substitutional, and if the accident is not covered by the compensation law, the common law action remains unaffected. Wilson v. Hungate (Mo.), 434 S.W.2d 580.

(1973) Formula for division of proceeds of suit against third party instituted by workmen's compensation claimant established by court. Ruediger v. Kollmeyer Brothers Service (Mo.), 501 S.W.2d 56.

(1995) When calculating the amount of recovery under subsection 3 of this section, medical expenses are included. McCormack v. Stewart Enterprises, Inc., 916 S.W.2d 219 (Mo.App.W.D.).

(1998) Case management group retained by employer for the purpose of directing and monitoring treatment of employer's injured employees was not a third person against whom separate tort claims may be brought because group's alleged acts were performed for the purpose of discharging employer's duty to provide treatment to employer's injured employees. Burns v. Employer Health Services, Inc., 976 S.W.2d 639 (W.D.Mo.).

(2000) Employer has a subrogation interest in employee's spouse's recovery from third-party for loss of consortium claim, unless sufficient evidence shows that part of overall settlement is allocated for that claim. Ryder Integrated Logistics, Inc. v. Royse, 125 F.Supp.2d 375 (E.D.Mo.).